faustine felix isaya vs jovita katunzi 1996 tzhc 22 10 may 1996

IN THE HIGH COURT OF TANZANIA DAR ES SAL,.AM DISTRICT REGISTRY AT PAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO.5 OF 1995 FAUST IN- FELIX ISAY A . . . . . . . . , APPLICANT versus JOVITA KATUNZI .................... RESPONDENT RULING The applicant FAUSTIN FELIX ISAYA has, through his counsel Mr. Ukwonga, filed this application under sub section 79 (l) and of the C.P.C. 1996 and section 44 (l)(b) of the M.C.A, 1984, seeking for this court to exercise its revisional powers in Kisutu RMC Probate cause No.19 cf 1994 and quash the Ruling made on 29/3/95 whereby the application to have the exparte'hearing set aside was refused. The applicant is also asking this court to revise the exparte proceedings from 22/2/95 up to 29/5/95 for being a nullity. The history behind this application, as it was revealed after going through the recor. s as follows. One JOVITA KATUI the son cf tl ■'eased 3econda Nlpjiljag applied on 14/5/93 to be granted letter-o of administration for the estate of his deceased mother who died in Dar es Salaam on <5/6/90, That was Probate Cause Jo.35 of 1993. As the hearing was in progress the trial magistrate was directed by his senior to transfer the file to the District Court. This transfer was a result of the application by Mr, Ukwonga acting on behalf of one Faustin Felix Is^aya the husband of the deceased. It was not transferred on the ^nstante of the applicant as was recorded by the trial Magistrate, Probate Cause No,19 of J994 was therefore opened a-fc the RM Court Kisutu, and Faustin Felix Issay applied for letters of administration in regard to the estate of the late Secunda Nkuba. I must remark chat this is where matters started going off couj^e, The applicant Faustin Felix ought to have filed a caveat in Probate Cause N0|19 °f 199^* 2 Instead it is the original applicant Jovita who having opened another file at Ri. Kisulr - Probate cause No.24 of 1994 - now became the caveator, ...fter being advised to do so by the RJK incharge. I note n record that there is a piece of paper insoribed by th; PRM on 25/4/94 to that effect. Be it as it may, Jovita Katun*.i continued to press with the matter. He filed a cr,amber ap- lication to challenge the application by Faustin Felix Iocaya. The hearing took o^f with the usual mentions ana adjournments until on 22/2/95 when the PRM ruled that the hearing of the application proceed exparte as the applicant Faustin had refused to Qbeya court summons. On 15/3/95 the applicant then respondent filed another chamber summons under 0 9 Rule 13 asking the •ourt to set aside the expente c^der and hearing to proceed interpartes. An affidavit was f'ilea by Faustin in support of the application, while Jovita th: , caveator countered the affidavit. The trial m_3istrate -/as .~t impressed. He was of the firm view that a-- Faustin ...,d -.a.fu. ed to be served, the court was right to proceed ex art.-. ?-»ustin felt aggrieved hence this application for review bef. re this court. The issue befor:, r...; Is whether th- trial magistrate was justified in ordering on 22/2/95 to oeed exparte* In otherwords, whether the court could prje^ed exparte in gush probate proceedings. That there are several persons interested to administer "the estate of the late Secunda Nkuba is not disputed. There Jovita Katunzi the son, Faustin Felix Issaya the husband and of course the brothers of the deceased. It is therefore a contentious matter and from the record it is clear that : . none of the parties is willing to give up the claim w^ h o u t a fight. The applicant filed an affidavit o.i 15/3/95 in support Of his chamber application to have the .sparts order set asjde. Whereas the trial magistrate had based l.is decision on the fast that the applicant refused to be se:-ved, the applicant himself says nothing on the matte*, Rather he says he was misinformed on the dates by a court slerk by the name of The said Mtui has not been ask&d to deny or con ir licant’s story, ,-r 3 I view of the evidence on record, that the applicant had refused to be served, I th:..ik the trial magistrate acted properly in the circumstances to proceed to hear the objector alone. I an, not satisfied that the applicant has shown sufficient cause to .uake me depart from the path taken by the trial magistrate, The applicant has, in my view conveniently avoided to say anything on the summon! - why? It is not for this court to fill up the gap. In the event, I cannot fault the decision by the trial magistrate to proceed exparte. Application dismissed with costs* ' A' Uodsi A. G. BUBESHI JUDGE 33/5/95 Delivered before Mr.- Ndanzi for Respondent Applicants being absent though served.